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Rishi kumar   14 November 2017

About contradictions in divorce petition

Dear experts,I have filed divorce petition under section12(1)(a) R/w 13(1)(ia) of HMA in April 2016 for unconsummated marriage. Today OP has given a petition that both sections are contradictory to each other and that there is no pleading for voidable marriage in the petition. She  also says that we can't file the same petition under both sections as both are contradictory to each other.

my  postgraduate wife further pleads that she is penniless and has sought  Rs. 60,000 for legal expenses from her AFFLUENT husband. 

Kindly  elaborate. Can I plead that penniless wife can avail of the services of the free legal aid cell



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 16 Replies

Sachin (N.A)     14 November 2017

Originally posted by : Rishi kumar
Dear experts,I have filed divorce petition under section12(1)(a) R/w 13(1)(ia) of HMA in April 2016 for unconsummated marriage. Today OP has given a petition that both sections are contradictory to each other and that there is no pleading for voidable marriage in the petition. She  also says that we can't file the same petition under both sections as both are contradictory to each other.

my  postgraduate wife further pleads that she is penniless and has sought  Rs. 60,000 for legal expenses from her AFFLUENT husband. 

Kindly  elaborate. Can I plead that penniless wife can avail of the services of the free legal aid cell

 

Yes, you can plead this but genrally court allows the litigation expense at the time of deciding the interim maintenance.

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Sachin (N.A)     14 November 2017

But because she has challanged the maintainability of petition court should decide this point first and whether she is penniless or not is matter of trial 

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Advocate Bhartesh goyal (advocate)     14 November 2017

Yes,Court Wii decide maintainability of petition first and if finds that petition is maintainable then proceed further else drop the proceedings.
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Rishi kumar   14 November 2017

Are there really any  contradictions in the petition or is it maintainable?

Sachin (N.A)     14 November 2017

Originally posted by : Rishi kumar
Are there really any  contradictions in the petition or is it maintainable?

 

Depends.....

After how much time of marriage, you filed this petition ?

Is there any other ground or cruelty other than denial of s*x ?

Is it willful denial or any medical problem?

Rishi kumar   14 November 2017

Are there contradictions in the petition or is it maintainable?

Vijay Raj Mahajan (Advocate)     14 November 2017

Mistake made by your lawyer, the petition should have been made for annulment of  marriage under section 12(1)(a) and alternately for dissolution marriage by decree of divorce under section 13(1)(ia) of the Hindu Marriage Act,1955.The ground for annulment of marriage and dissolution by decree of divorce are both different, however both can be brought together in one petition.

The petition has to be drafted in the manner where facts of the case mentions both, the grounds for annulment for marriage could not be consumated owing to the impotency of the respondent and in alternate dissolution by decree of divorce on the ground of cruelty should be mentioned in clear words.

Lets see how the family court decide the issue of maintainability of the present petition filled by you. The maintenance pendentillite and expenses for proceedings u/s 24, can be claimed by either of the spouse during the pendency of the main petition and even if the maintainability of petition is to be decided, the court can still first decide the application u/s 24 HMA. Wife has no income is the main criteria to decide this application in her favor even though she may be post graduate.

Rishi kumar   14 November 2017

Hi Sachin,

i filed for divorce after 6 years of marriage. It is medical problem, means she has fear, vagainismus, and fibroids problem. Regularly took her to doctors and tried to set things right. When the efforts of my parents and failed , we requested her parents to do something about it. But instead, after two weeks they barged into my parents home and assaulted all of us. Realised that this marriage lacks not only s*x but also love as she was the one who abused us most. We were shocked to see her new avatar. It was not denial but she was incapable of as she had medical, psychological and physical problems. So I feel it is the impotency of the respondent. So asking for nullify.

Sachin (N.A)     14 November 2017

Your petition is maintainable.

Opposite lawyer will raise the point that nullity petiton should be filed within one year but you can say that you tried to get her treated that's why it took time.

And you are very right by saying that there are also elements of cruelty also.

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Rishi kumar   14 November 2017

Thank you vijay Raj Mahajan. 

I have all the medical reports of my wife form many reputed hospitals. It was never our intention as the whole family doted on her. There was not even a small issue all these  years. Nothing was demanded or taken but they have filed 498a and DV as well. I do not know what the court is going to decide , but the lawyer said if court refuses annulment depriving s*x also can give divorce. Medical science has advanced so much and we thought this problem can be over come. 

Rishi kumar   14 November 2017

Hi Sachin,

i filed for divorce after 6 years of marriage. It is medical problem, means she has fear, vagainismus, and fibroids problem. Regularly took her to doctors and tried to set things right. When the efforts of my parents and failed , we requested her parents to do something about it. But instead, after two weeks they barged into my parents home and assaulted all of us. Realised that this marriage lacks not only s*x but also love as she was the one who abused us most. We were shocked to see her new avatar. It was not denial but she was incapable of as she had medical, psychological and physical problems. So I feel it is the impotency of the respondent. So asking for nullify. It is clearly mentioned in reports that she is willing for examination but not allowing. In Vinod Chand vs Smt. Aruna dubey the petition for nullity is filed after 8 years of marriage. Can I argue on those lines also?

Rishi kumar   15 November 2017

Dear experts, because I addressed Sachin or vijay Raj Mahajan , it doesn't mean that other opinions are not important . Sachin and vijay have expressed their opinions and of course, I liked them, but I also want everyone's expert opinion also. We all have different ideas and opinions also and this forum helps to share and litigants can make use of this collective wisdom. I wonder why the other experts, scores of them, who are active in this forum are silent. Please write, I want inputs from all.  It is not practical for my lawyer, howmuchever  she is interested in my case , to follow only my case. So it is in my interrest to contribeute as much as possible so that together, we can do something. The above two opinions wer were helpful and I request all of you experts PLEASE, PLEASE, to spare a few minutes and post your ideas and opinions here. It is extremely important to me. Kindly help me here. Thanking you all.

Kumar Doab (FIN)     16 November 2017

The court shall decide the issue of maintainability of petition as contented.

You can bring into the notice of court, politely, if you want, that penniless OP can seek support from Free Legal Aid….

Kumar Doab (FIN)     16 November 2017

Hope you have lodged complaint of assualt after barging in and can establish it.

The medical disorder pointed out by you has been discussed in many threads and in detail.

Hope you have the irrefutable evidnece of failure of treatement due to Non Compliance to treatment.

 

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